SWS v. COMELEC and erroneous surveys just before the election.
May 5, 2001 | Mendoza, J. | ART III, SEC 4 (2) The impairment of freedom of expression is minimal, the restriction
PETITIONER: Social Weather Stations, Incorporated And Kamahalan
Publishing Corporation, Doing Business As Manila Standard
RESPONDENTS: Commission On Elections
SUMMARY: COMELEC enacted a resolution implementing the Fair Elections
Act, which prohibits publishing surveys for a definite time before the election
day. Petitioners questions the provision stating that it is a prior restraint on the
exercise of freedom of speech. The Court ruled in favor of the petitioners because
the provision failed to meet 2 out of the 4 criterion laid down by American
jurisprudence in identifying content-neutral regulations. The Court stated that the
provision suppresses a whole class of expression, while allowing the expression
of opinion concerning the same subject matter by newspaper columnists, radio
and TV commentators etc. In other words, it shows a bias by preferring personal
opinion to statistical results. Also, the objective of preventing evils cannot be
attained at the sacrifice of the fundamental right of expression, when such aim
can be more narrowly pursued by punishing unlawful acts. Therefore, the
provision was declared unconstitutional.
FACTS:
 COMELEC enacted Resolution 3636 in 2001 to implement the Fair Election
Act which states that:
Surveys affecting national candidates shall not be published fifteen
(15) days before an election and surveys affecting local candidates
shall not be published seven (7) days before an election.
 Accdg to SWS and Kamahalan Corp:
(1) The restriction on the publication of election survey results
constitutes a prior restraint on the exercise of freedom of speech
without any clear and present danger to justify such restraint.
(2) They conducted and published surveys before up to as close as two days
before the election day without causing confusion among the voters and
that there is neither empirical nor historical evidence to support the
conclusion that there is an immediate and inevitable danger to the voting
process posed by election surveys.
(3) No similar restriction is imposed on politicians from explaining their
opinion or on newspapers or broadcast media from writing and
publishing articles concerning political issues up to the day of the
election.
 Accdg to COMELEC:
(1) The restriction is necessary and narrowly tailored to prevent the
manipulation and corruption of the electoral process by unscrupulous
being limited both in duration, i.e., the last 15 days before the
national election and the last 7 days before a local election, and in
scope as it does not prohibit election survey results but only require
timeliness.
ISSUE/s:
 WoN the assailed provision of the Fair Elections Act and the subsequent
COMELEC resolution implementing it constitutes an unconstitutional
abridgment of freedom of speech, expression, and the press – YES
RATIO:
 Any system of prior restraint of expression bears a heavy presumption against
its constitutional validity.The Government thus carries the burden of showing
justification of such restraint.
 In distinguishing content-based from content-neutral regulations, a
government regulation is sufficiently justified if:
(1) it is within the constitutional power of the Government;
(2) it furthers an important or substantial governmental interest;
(3) the governmental interest is unrelated to the suppression of free
expression;
(4) the incidental restriction on alleged freedoms of speech, expression and
press is no greater than is essential to the furtherance of that interest
 The assailed provision fails to meet the 3rd criterion. The provision
suppresses a whole class of expression, while allowing the expression of
opinion concerning the same subject matter by newspaper columnists, radio
and TV commentators etc. In other words, it shows a bias by preferring
personal opinion to statistical results.
 Also, the prohibition may be for a limited time, but the curtailment of the
right of expression is direct, absolute, and substantial.
 The provision also fails to meet the 4th criterion. The prohibition aims at the
prevention of last-minute pressure on voters, the creation of bandwagon
effect, "junking" of weak or "losing" candidates, and resort to the form of
election cheating called "dagdag-bawas."
 These objectives cannot be attained at the sacrifice of the fundamental right
of expression, when such aim can be more narrowly pursued by punishing
unlawful acts. Besides, the COMELEC can confiscate bogus survey results
calculated to mislead voters. And as for the purpose of the law to prevent
bandwagon effects, it is doubtful whether the Government can deal with this
natural tendency of some voters.
 Therefore, the assailed provision of the Fair Elections Act and the subsequent
COMELEC resolution implementing it constitutes an unconstitutional
abridgment of freedom of speech, expression, and the press
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